EXHIBIT 10.69
PREPARED BY AND AFTER RECORDING
RETURN TO:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Property: Centre at Woodstock
Loan No.: M255999755
ASSUMPTION OF LIABILITY
AND MODIFICATION AGREEMENT
THIS ASSUMPTION OF LIABILITY AND MODIFICATION AGREEMENT (this "Agreement")
is made to be effective as of August 12, 2004 (the "Effective Date"), by and
between CENTRE AT WOODSTOCK, LLC, a Georgia limited liability company
("Borrower"), whose address is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and
RAMCO WOODSTOCK LLC, a Delaware limited liability company ("Purchaser"), whose
address is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, and ▇▇▇▇▇ FARGO BANK, N.A., SUCCESSOR-BY-MERGER TO NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS OF FIRST
UNION COMMERCIAL MORTGAGE TRUST COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
FUNB SERIES 1999-C1 ("Lender"), as established under the Pooling and Servicing
Agreement dated as of December 1, 1998, whose address is c/o Wachovia Bank,
N.A., Real Estate & Financial Services, Investment Banking, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., an individual
(individually and collectively, as the context requires, "Existing Indemnitor"),
being the guarantor(s) under the Guaranty (hereinafter defined) and, with
Borrower, the indemnitor(s) under the Environmental Indemnity (hereinafter
defined), joins in the execution hereof with respect to the matters set forth in
Paragraph 5 hereinbelow. RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES L.P. ("New Indemnitor"),
joins in the execution hereof with respect to the matters set forth in Paragraph
4 hereinbelow.
R E C I T A L S:
A. First Union National Bank ("Original Lender"), made a loan (the "Loan")
in the original principal amount of SEVEN MILLION DOLLARS ($7,000,000) to
Borrower.
B. To evidence the Loan, Borrower executed and delivered to Original
Lender that certain Promissory Note, dated June 30, 1998 (the "Note"), payable
to the order of Original
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Lender in the original principal sum of SEVEN MILLION DOLLARS ($7,000,000),
bearing interest and being payable as therein provided.
C. Payment of the Note is secured by, among other instruments, that
certain Deed to Secure Debt and Security Agreement of even date therewith (the
"Security Instrument"), executed by Borrower for the benefit of Original Lender,
encumbering, among other property, that certain parcel of real property located
in Cherokee County, Georgia, which is more particularly described on Exhibit A
attached hereto and incorporated herein for all purposes (the "Property").
D. The Security Instrument is recorded in Deed Book 3182, Page 28 of the
Official Real Estate Records of Cherokee County, Georgia (the "Records"), said
Security Instrument and the record thereof being incorporated herein for all
purposes.
E. Payment of the Note is further secured by certain other instruments,
including specifically, without limitation, that certain Assignment of Leases
and Rents of even date with the Note (the "Assignment of Leases"), recorded in
Deed Book 3182, Page 95 of the Records.
F. Borrower and Existing Indemnitor also executed an Environmental
Indemnity Agreement (the "Environmental Indemnity") with respect to the Loan,
and Existing Indemnitor executed an Indemnity and Guaranty Agreement (the
"Guaranty"), each of even date with the Note, with respect to those matters,
commonly known as "non-recourse carveouts," set forth in the Note.
G. Lender is the current owner and holder of the Loan and succeeded to the
interest of Original Lender under the Loan Documents by that certain Assignment
of Deed to Secure Debt and Security Agreement, and Assignment of Leases dated
December 30, 1998 to Lender, recorded in Deed Book 3888, Page 199 of the
Records.
H. Borrower desires to sell, convey and transfer the Property to Purchaser
subject to Purchaser's assumption of the Loan Documents and Borrower and
Purchaser have requested Lender's consent to such transfer and assumption.
I. Lender desires to grant its consent to the transfer and assumption
subject to the terms and conditions as more specifically provided hereinbelow.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. For purposes hereof, the following terms shall have the meanings
set forth below. All capitalized terms used herein and not otherwise
defined herein shall have the respective meanings set forth in the
Security Instrument.
(a) "Loan Documents" shall mean the Note, the Security
Instrument, the Assignment of Leases, the Environmental Indemnity,
the Guaranty, together with all other documents evidencing and
securing the Loan.
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(b) "Assumption Documents" shall mean this Agreement, together
with all other documents executed or delivered in connection
herewith or with the assumption of the Loan Documents by Purchaser
as set forth herein.
(c) "Assumed Loan Documents" shall mean the Loan Documents, as
assumed by Purchaser and modified as set forth in the Assumption
Documents.
2. Borrower agrees to sell, grant and convey to Purchaser all right,
title and interest in and to the Property subject to the liens and
encumbrances of the Loan Documents and to the terms and provisions of this
Agreement and the other Assumption Documents.
3. Purchaser hereby assumes liability for and agrees to pay and
perform any and all of the indebtedness which Borrower may now be, or
which Purchaser hereafter becomes, obligated to pay under or in connection
with the Note, the Security Instrument, the Assignment of Leases and any
of the other Loan Documents, and any and all other obligations which
Borrower may now or hereafter be obligated to perform under or in
connection with the Note, the Security Instrument, the Assignment of
Leases and any of the other Loan Documents, without reservation or
exception, to the same extent as though Purchaser were the original
obligor, subject, however, to any limitations set forth in the Loan
Documents with respect to recourse against the Borrower in the event of a
default.
4. Without limitation, Purchaser acknowledges its full, personal
liability for those matters, commonly known as "non-recourse carveouts,"
set forth in the Note, and for any representations, warranties, covenants
and indemnities contained in any of the Loan Documents relating to
environmental matters (the non-recourse carveouts and environmental
representations, warranties, covenants and indemnities being herein
referred to as "Purchaser's Recourse Obligations"). Additionally, by that
certain Substitution of Guarantor, New Indemnitor has assumed and agreed
to have joint and several liability with Purchaser for Purchaser's
Recourse Obligations, in accordance with the terms of such instrument.
5. Borrower and Existing Indemnitor, respectively, are released from
their respective obligations as set forth in the Note, the Security
Instrument, the Assignment of Leases and any of the other Loan Documents,
except for recourse obligations for which such parties expressly have
personal liability under the Note and other Loan Documents ("Recourse
Obligations") to the extent such Recourse Obligations arise out of acts or
events occurring or obligations arising prior to or simultaneously with
the transfer of the Property to Purchaser. To the extent of Borrower's
obligations which expressly survive the execution and delivery of this
Agreement, the obligations of Borrower and Purchaser shall, as to Lender,
be joint and several. Borrower agrees that Lender may, without notice to
Borrower and without releasing Borrower from liability, accept collections
directly from Purchaser and otherwise deal with Purchaser in all matters
relating to the Note, the Security Instrument, the Assignment of Leases
and any of the other Loan Documents, without notice to Borrower to the
same extent as though Borrower were not, to the extent of Borrower's
obligations which expressly survive the execution and delivery of this
Agreement, jointly and severally liable with Purchaser, and that the
obligations of
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Borrower which expressly survive the execution and delivery of this
Agreement shall not be released, waived, increased, expanded or otherwise
affected in any way notwithstanding any agreements, arrangements,
releases, compromises, acceptances of late payments, novations or any
other dealings whatsoever between Lender and Purchaser or any other party
concerning the Note, the Security Instrument, the Assignment of Leases and
any of the Loan Documents or the property secured thereby. Borrower agrees
that Lender may, without notice to Borrower and without releasing Borrower
from Borrower's liability with respect to those matters which expressly
survive the execution and delivery of this Agreement, elect any remedy and
compromise or release any debt or grant extensions of time for payment all
on terms satisfactory to Lender or by operation of law or otherwise. By
its signature below, Existing Indemnitor agrees to the matters set forth
in the preceding two sentences with respect to its continuing liability
for those Recourse Obligations arising out of acts or events occurring or
obligations arising prior to or simultaneously with the transfer of the
Property to Purchaser, including, without limitation, those arising
pursuant to the Environmental Indemnity and the Guaranty that survive the
execution and delivery of this Agreement.
6. Borrower and Purchaser each represent and warrant to Lender for
themselves and on their own behalf (but not for the benefit of each of
Purchaser or Borrower as to the other) that:
(a) neither has placed, agreed to, authorized or knows of any
lien against the Property (other than the Loan Documents and
Permitted Encumbrances, as defined in the Security Instrument);
(b) to their knowledge there is no second mortgage or other
lien now outstanding against the Property (other than taxes for the
current year only, which are not yet due and payable);
(c) the lien of the Security Instrument is a valid first and
subsisting lien on the Property (subject to real estate taxes);
(d) the execution, delivery and recording of this Agreement
will not impair the lien of the Security Instrument;
(e) all information, documents and financial information,
respectively, submitted to Lender by the warranting party or its
agents relating to Purchaser, Borrower or their general partners,
members, guarantors, parents or subsidiaries is true, correct and
complete and accurate in all material respects as of the date of the
submission and as of the date of this Agreement; and
(f) the person(s) executing this Agreement on behalf of
Purchaser and Borrower, respectively, have the full authority to do
so and to bind Purchaser or Borrower, as applicable.
7. The Property shall remain in all respects subject to the liens,
charges or encumbrances of the Security Instrument and the other Loan
Documents and/or conveyance of title contained in the Loan Documents.
Nothing in this Agreement shall
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affect or be construed to affect (a) the warranty of title in the Security
Instrument or (b) the liens, charges or encumbrances of the Security
Instrument or the other Loan Documents or the priority thereof over all
other liens, charges, encumbrances or conveyances, or (c) release or
affect the liability of any party or parties under or on account of the
Loan Documents, except to the extent Borrower and the Existing Indemnitor
are expressly released under Paragraph 5 of this Agreement. Nothing in
this Agreement shall affect or be construed to affect any other security
or instrument, if any, held by Lender in connection with or to evidence
the Loan.
8. As a condition precedent to Lender's consent to the transfer to
Purchaser and assumption of the Loan Documents by Purchaser, Purchaser
represents, warrants and covenants to Lender as follows:
(a) Purchaser is a limited liability company, duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and has full power and authority to conduct the business
of owning and operating the Property in the state where the Property
are located.
(b) Purchaser is not a foreign corporation, foreign
partnership, foreign trust or foreign estate, as those terms are
defined in the Internal Revenue Code. Purchaser's U.S. employer
identification number is ▇▇-▇▇▇▇▇▇▇ and office address is ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
This statement is made by Purchaser in compliance with Section 1445
of the Internal Revenue Code to exempt any transferee of the
Property from withholding the tax required upon a foreign
transferor's disposition of a U.S. real property interest.
(c) Lender is not required to withhold any tax as a result of
the transfer of the Property to Purchaser or upon the exercise by
Lender of any of its rights or remedies pursuant to the Security
Instrument. Purchaser agrees to inform Lender promptly if any of the
above information in this subparagraph should change and no longer
be true. Purchaser understands that the information set forth herein
may be disclosed to the Internal Revenue Service and that any false
statement contained herein could be punished by fine, imprisonment,
or both.
(d) The execution and delivery of this Agreement and of the
documents and instruments effecting such sale, conveyance and
assignment of the Property to Purchaser have been duly authorized by
Purchaser, and that this Agreement and such other documents and
instruments have been duly executed and delivered by Purchaser.
(e) This Agreement, the other Assumption Documents and the
Assumed Loan Documents, constitute the legal, valid and binding
obligations of Purchaser enforceable in accordance with their
respective terms, except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization or
other similar laws affecting the rights of creditors generally or
general principles of equity. Neither the entry into nor the
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performance of and compliance with this Agreement, the other
Assumption Documents or any of the Assumed Loan Documents has
resulted or will result in any violation of, or conflict with or
default under, any judgment, decree, order, mortgage, indenture,
contract, agreement or lease by which Purchaser or any property of
Purchaser is bound or any statute, rule or regulation applicable to
it.
(f) There is no action, proceeding or investigation pending
or, to the best of Purchaser's knowledge, threatened, which
questions, directly or indirectly, the validity or enforceability of
the Assumption Documents or any of the Assumed Loan Documents, or
any action taken or to be taken pursuant thereto, or which might
result in any material adverse change in the condition (financial or
otherwise) or business of Purchaser.
(g) Purchaser has personal knowledge of all of the terms and
conditions of the Assumed Loan Documents and further agrees that
Lender has no obligation to provide any information to Purchaser
regarding the terms and conditions of the Loan Documents. Purchaser
further understands and acknowledges that, except as expressly
provided hereunder or in another writing executed by Lender, Lender
has not waived any right of Lender or obligation under the Loan
Documents and Lender has not agreed to any modification of any
provision of any Loan Document or to any extension of the Loan.
(h) No representation or warranty of Purchaser made in this
Agreement contains any untrue statement of material fact or omits to
state a material fact necessary in order to make such
representations and warranties not misleading in light of the
circumstances under which they are made.
(i) There has been no material adverse change in the
representations made or information heretofore supplied by or on
behalf of Purchaser in connection with the assumption of the Loan,
including, but not limited to, with respect to (a) the composition,
structure, finances, business operations, credit prospects or
financial condition of Purchaser or any other entity or person
within the organizational structure of Purchaser or which or who has
a direct or indirect ownership interest in Purchaser and (b) the
rental income, condition or ownership of the Property.
(j) (i) as of the Effective Date, Purchaser will have acquired
from Borrower all of the Property, and accepted Borrower's
assignment of the Leases and Rents; (ii) as of the Effective Date,
Purchaser will have assumed the performance of Borrower's
obligations under the Leases; and (iii) it has not granted to
Borrower or Existing Indemnitor a mortgage or other security
instrument or lien upon the Property to secure any debt or
obligations owed to Borrower or Existing Indemnitor.
(k) There are no rights to set off or counterclaim, nor any
defenses of any kind, whether legal, equitable or otherwise, which
would enable Purchaser to
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avoid or delay timely performance of its obligations under the
Assumed Loan Documents.
(l) There are no loans payable by Purchaser to any partner or
member of Purchaser or to any other person or entity which is in the
organizational structure of Purchaser or who or which has a direct
or indirect ownership interest in Purchaser or is an affiliate or
subsidiary entity of any of the foregoing or is a stockholder,
officer or director of any of the foregoing or is an affiliate or
subsidiary entity of such stockholder, officer or director.
(m) Purchaser has furnished to Lender all insurance policies
and certificates required pursuant to the Loan Documents.
(n) Purchaser does not own any real property or assets other
than the Property and does not operate any business other than the
management and operation of the Property.
(o) Purchaser has filed all federal, state, county and
municipal tax returns required to have been filed by Purchaser, and
has paid all taxes which have become due pursuant to such returns or
to any notice of assessment received by Purchaser, and Purchaser has
no knowledge of any basis for additional assessment with respect to
such taxes. To the best of Purchaser's knowledge, there are not
presently pending any special assessments against the Property or
any part thereof.
(p) After the Loan is assumed, Purchaser will, to the best of
its knowledge, have sufficient working capital, including cash flow
from the Property, not only to adequately maintain the Property, but
also to pay all of Purchaser's outstanding debts as they come due.
9. Purchaser shall use commercially reasonable efforts to obtain in
all new leases in respect of the Property, in substance, the following
provision (the "Attornment Language"):
Attornment. Tenant hereby agrees that Tenant will recognize as
its landlord under this Lease and shall attorn to any person
succeeding to the interest of Landlord in respect of the land
and the buildings on or in which the demised premises is
contained, upon any foreclosure of any deed of trust upon such
land or buildings or upon the execution of any deed in lieu of
such foreclosure in respect of such deed of trust. If
requested, Tenant shall execute and deliver an instrument or
instruments confirming its attornment as provided herein;
provided, however, that no successor-in-interest shall be
bound by any payment of rent for more than one (1) month in
advance, or any amendment or modification of this Lease made
without the express written consent of the beneficiary under
such deed of trust, provided that such person shall recognize
this Lease
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as remaining in full force and effect and Tenant's rights to
possession remain undisturbed so long as Tenant is not in
default hereunder.
Notwithstanding the foregoing, Lender acknowledges that (i)
Borrower's standard form lease contains subordination and attornment
language which may be used in lieu of the Attornment Language, and
(ii) anchor tenants often insist on using their own standard form of
lease agreement which may contain language that varies and this will
be taken under advisement when Lender reviews and approves such
anchor tenant lease, although Lender may require reasonable
subordination, non-disturbance and attornment language and there may
be the necessity for a separate subordination, non-disturbance and
attornment agreement with such anchor tenant.
10. Neither Purchaser nor to Purchaser's knowledge, any person
owning an interest in Purchaser (except that Purchaser's knowledge shall
not require any investigation into ownership of publicly traded stock or
other publicly traded securities nor into ownership of limited partners of
New Indemnitor), is a country, territory, individual or entity named on a
list maintained by the U.S. Treasury Department's Office of Foreign Assets
Control ("OFAC"), or is a Specially Designated National or Blocked Person
under the programs administered by OFAC. If the foregoing certification,
representation and warranty shall at any time be or become untrue or
incorrect during the term of the Loan, an Event of Default shall be deemed
to have occurred.
11. Lender hereby consents to said transfer and agrees that said
transfer and sale shall not constitute a default under the Security
Instrument or any of the other Loan Documents. However, Lender does not
waive any other default, whether now in existence or occurring hereafter,
whether known or unknown. Lender has no actual knowledge of any monetary
default under any of the Loan Documents. This waiver applies only to this
particular transfer and sale and not to any future transfer or sale.
Purchaser and Borrower agree that they will not sell or attempt to sell or
transfer or otherwise dispose of the property covered by the Security
Instrument without the written consent of Lender, its successors or
assigns, except for the sale referred to herein.
12. Until further notice given by either party to the other in
accordance with Section 4.5 of the Security Instrument:
(a) the following shall be the name and address for notices
for Purchaser as "Grantor" under Section 4.5 and as "Debtor" under
Section 1.22 of the Security Instrument:
RAMCO WOODSTOCK LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
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(b) the following shall be the name and address for notices
for Lender as "Grantee" under Section 4.5 and as "Secured Party"
under Section 1.22 of the Security Instrument:
▇▇▇▇▇ FARGO BANK, N.A., SUCCESSOR-BY-MERGER TO NORWEST
BANK MINNESOTA, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE
REGISTERED HOLDERS OF FIRST UNION COMMERCIAL MORTGAGE
TRUST COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES FUNB
SERIES 1999-C1
c/o Wachovia Bank, N.A.
Real Estate & Financial Services, Investment Banking
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Loan No. M255999755
13. The parties hereby acknowledge and agree that the outstanding
and unpaid principal balance of the Note as of August 2, 2004 is
$5,822,873.91. This amount has been determined after taking into account
the payment received by Lender due for August 1, 2004.
14. The Note, the Security Instrument, the Assignment of Leases and
any and all other Loan Documents are hereby modified to reflect the
transfer provided for herein and all references therein to Borrower, shall
be deemed to refer to Purchaser. Except as expressly modified by this
Agreement and the other Assumption Documents, the terms and conditions of
the Loan Documents remain unchanged and are reaffirmed, ratified and
confirmed and remain in full force and effect. Borrower is not now
entitled to any claim, counterclaim, defense, affirmative defense, or
other right of setoff whatsoever against Lender, its officers, directors,
employees and agents (the "Released Parties") with regard to (x) the
payment of the Note and the sums payable thereunder or (y) the enforcement
of any of the rights and remedies of Lender under any of the Loan
Documents. In consideration of Lender's consent under this Agreement and
the release of Borrower under Paragraph 5 of this Agreement, Borrower
hereby releases, waives, and surrenders any and all claims, counterclaims,
defenses, affirmative defenses, and other rights of setoff whatsoever,
relating to acts, events, conduct, or other matters whatsoever occurring
at or prior to the date hereof, that Borrower might otherwise have been
entitled to assert or allege against the Released Parties (but not against
Purchaser) for any reason under or in connection with the Loan or Loan
Documents or the Assumption Documents, including, but not limited to, any
matter related to, connected with, arising out of, or regarding this
Agreement, transfer of the Property, the payment of amounts due to Lender
under the Note or the enforcement of the provisions under any of the Loan
Documents. Purchaser acknowledges and agrees that the foregoing release,
waiver, and surrender by Borrower is binding upon Purchaser for all events
arising prior to the execution of this Agreement.
15. PURCHASER AND BORROWER WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY
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ACTION, PROCEEDING OR COUNTER-CLAIM FILED BY EITHER OF THEM, WHETHER IN
CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT, THE LOAN DOCUMENTS OR ANY ACTS OR OMISSIONS OF LENDER IN
CONNECTION THEREWITH OR THE LOAN.
16. All parties to this Agreement specifically confirm and agree
that nothing in this Agreement shall be understood or construed to amount
to a satisfaction or release in whole or in part of the Note, the Security
Instrument, the Assignment of Leases or any of the other Loan Documents,
or of the property covered by the Security Instrument from the effect
thereof. All terms and conditions of the Loan Documents, including any
written amendments or modifications heretofore agreed to by Lender, shall
continue in full force and effect except as otherwise provided herein.
17. Except as expressly provided herein, the execution of this
Agreement by the Lender does not and shall not constitute a waiver of any
rights or remedies to which Lender is entitled pursuant to the Loan
Documents, nor shall the same constitute a waiver of any default which may
have heretofore occurred or which may hereafter occur with respect to the
Loan Documents.
18. This Agreement may be executed in any number of counterparts
with the same effect as if all parties hereto had signed the same
document. All such counterparts shall be construed together and shall
constitute one instrument, but in making proof hereof it shall only be
necessary to produce one such counterpart.
19. If any one or more of the provisions contained in this Agreement
are for any reason invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision hereof, and this Agreement will be construed as if such invalid,
illegal or unenforceable provision had never been contained in this
Agreement.
20. THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL BE GOVERNED BY
THE APPLICABLE INTERNAL LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS.
21. Within this Agreement, words of any gender shall be held and
construed to include any other gender, and words in the singular number
shall be held and construed to include the plural, unless the context
otherwise requires. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and that the normal rule
of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of
this Agreement or any exhibits or amendments hereto.
22. THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT BETWEEN THE PARTIES
HERETO WITH RESPECT TO THE ASSUMPTION OF THE LOAN AND FULLY SUPERSEDES ALL
PRIOR AGREEMENTS AND
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UNDERSTANDING BETWEEN THE PARTIES PERTAINING TO SUCH SUBJECT MATTER.
23. The terms and conditions of this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, their successors and
permitted assigns.
24. Notwithstanding anything contained in Section 1.33(n) of the
Security Instrument, Lender hereby consents to Purchaser's tax returns
being consolidated with those of its sole member, Ramco-▇▇▇▇▇▇▇▇▇▇
Properties L.P., provided that (i) Purchaser shall deliver to Lender its
financial statements prepared in accordance with generally accepted
accounting practices no later than 30 days after the end of each calendar
quarter during the term of the Loan, (ii) on Ramco-▇▇▇▇▇▇▇▇▇▇ Properties
L.P.'s tax returns Purchaser is listed as being included in the tax
filing, (iii) Purchaser shall provide Lender with copies of its IRS
Schedule M-1 on a standalone basis by May 15 of each year during the term
of the Loan. Purchaser's failure to file separate tax returns shall not
constitute a default under the Security Instrument so long as Purchaser
complies with the foregoing. However, Lender does not waive any other
default, whether now in existence or occurring hereafter, whether known or
unknown. The waiver in this Section 24 regarding the separate filing of
tax returns applies only to Ramco Woodstock LLC and not to any future
assumptor pursuant to any future transfer or sale, if permitted by Lender;
the foregoing shall not constitute Lender's consent to any future transfer
or sale nor abrogate the terms and provisions of Section 11 above.
25. Section 1.21 of the Security Instrument is amended to delete the
erroneous reference "and Section 1.34 hereof" in the third line.
26. The definition of Permitted Encumbrances in the Security
Instrument is amended to include exceptions 4 through 11 on Schedule B on
Pro Forma Title Commitment (office file no. 044-116) issued by
Commonwealth Land Title Insurance as of August 6, 2004; provided, however,
this modification to the definition of Permitted Encumbrances is only made
to clarify that Purchaser shall not be in default by virtue of the
exceptions currently of public record, and shall not in any way abrogate
the liabilities, obligations or responsibilities of the title underwriter
under Lender's currently effective mortgagee's title policy (issued as of
the date of the Note) as modified by any endorsements issued concurrently
herewith.
27. The parties hereto acknowledge that (i) the Escrow Agreement
dated of even date with the Note is no longer in effect, and (ii)
Purchaser shall not be responsible for a breach of a representation or
warranty made by Borrower in the Loan Documents (but will be responsible
for any continuing representations or warranties that may be deemed to be
made by the obligor under the Loan Documents after the date hereof and any
representations and warranties made by Purchaser hereunder).
28. Notwithstanding anything contained in the Security Instrument to
the contrary:
11
(a) The following conveyances shall not require the consent of
Lender or be deemed a default under any of the applicable Loan
Documents: (1) transfers of limited partnership interests in New
Indemnitor, the limited partnership which presently owns the sole
membership in Purchaser; and (2) sales of stock in Ramco-▇▇▇▇▇▇▇▇▇▇
Properties Trust ("RGPT"), which is the publicly traded real estate
investment trust that is the general partner of New Indemnitor; and
(b) Consistent with Section 24 above, Purchaser shall not be
required to deliver financial statements separate from its member
(but shall be required to comply with Section 24 above), nor is it
necessary that New Indemnitor's financial statements be certified by
an independent certified public accountant (financial statements
certified by New Indemnitor's chief financial officer shall be
sufficient).
Purchaser's failure to comply with any contrary provisions in the Security
Instrument shall not constitute a default under the Security Instrument.
However, Lender does not waive any other default, whether now in existence
or occurring hereafter, whether known or unknown. The waivers in this
Section 28 apply only to Ramco Woodstock LLC and not to any future
assumptor pursuant to any future transfer or sale, if permitted by Lender;
the foregoing shall not constitute Lender's consent to any future transfer
or sale nor abrogate the terms and provisions of Section 11 above.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement to be effective as of the day and year first above written.
[THE BALANCE OF THIS PAGE IS BLANK.]
12
LENDER:
▇▇▇▇▇ FARGO BANK, N.A., SUCCESSOR-BY-MERGER
TO NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, AS TRUSTEE FOR THE REGISTERED
HOLDERS OF FIRST UNION COMMERCIAL MORTGAGE
TRUST COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES FUNB SERIES 1999-C1
By: Lennar Partners, Inc.
Its: Special Servicer
By: ___________________________________
Name: _________________________________
Title: ________________________________
Signed, sealed and delivered
in the presence of:
___________________________________
Print Name:
Unofficial Witness
___________________________________
Notary Public
(Notarial Seal)
My Commission expires:
___________________________________
[SIGNATURES CONTINUE]
BORROWER:
CENTRE AT WOODSTOCK, LLC,
a Georgia limited liability company
By: ________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Manager
Signed, sealed and delivered
in the presence of:
__________________________________
Print Name:
Unofficial Witness
__________________________________
Notary Public
(Notarial Seal)
My Commission expires:
__________________________________
[SIGNATURES CONTINUE]
PURCHASER:
RAMCO WOODSTOCK, LLC,
a Delaware limited liability company
By: _________________________________
Name: _______________________________
Title: ______________________________
Signed, sealed and delivered
in the presence of:
_______________________________________
Print Name:
Unofficial Witness
_______________________________________
Notary Public
(Notarial Seal)
My Commission expires:
_______________________________________
[SIGNATURES CONTINUE]
EXISTING INDEMNITOR:
___________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Signed, sealed and delivered
in the presence of:
______________________________________
Print Name:
Unofficial Witness
______________________________________
Notary Public
(Notarial Seal)
My Commission expires:
______________________________________
[SIGNATURES CONTINUE]
NEW INDEMNITOR:
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P.
a Delaware limited partnership
By: RAMCO-▇▇▇▇▇▇▇▇▇▇
PROPERTIES TRUST, a
Maryland real estate investment
trust, its General Partner
By: ___________________________
Name: _________________________
Title: ________________________
By: ___________________________
Name: _________________________
Title: ________________________
Signed, sealed and delivered
in the presence of:
_____________________________________
Print Name:
Unofficial Witness
_____________________________________
Notary Public
(Notarial Seal)
My Commission expires:
____________________________________
EXHIBIT A
(Legal Description)
Shopping Center Tract Legal Description
All that tract or parcel of land lying and ▇▇▇▇ in Land Lots 1131 and ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ of Woodstock, Georgia, and being more
particularly described as follows:
Commencing at the intersection of the northerly right-of-way of Georgia Highway
92 (having a variable right-of-way width) and the easterly right-of-way of
Trickum Road (having 4 variable right-of-way width), said point being at Sta 207
+ 58.33, 83.73' Lt. per Department of Transportation right-of-way documents for
Project #FR 165-1(49), dated 8/29/96; thence north 41 degrees 03 minutes 18
seconds west, along a right-of-way miter a distance of 97.47 feet to a point;
thence along the easterly right-of-way of Trickum Road north 00 degrees 22
minutes 47 seconds east, a distance of 119.27 feet to a point; thence continuing
along said right-of-way, along a curve to the right, having a radius of 11409.16
feet, an arc length of 24.67 feet, a chord bearing of north 00 degrees 26
minutes 30 seconds east, and a chord length of 24.67 feet to the Point of
Beginning;
Thence continuing along said right-of-way, along a curve to the right having a
radius of 11409.16 feet, an arc length of 169.93 feet, a chord bearing of north
00 degrees 55 minutes 49 seconds east, and a chord length of 169.92 feet- to a
point; thence continuing along said right-of-way north 01 degree 21 minutes 25
seconds east, a distance of 89.46 feet to a point; thence along a right-of-way
offset north 88 degrees 38 minutes 35 seconds west, a distance of 20.54 feet to
a point; thence continuing along said right-of-way north 03 degrees 38 minutes
08 seconds west, a distance of 32.15 feet to a point; thence continuing along
said right-of-way north 02 degrees 54 minutes 43 seconds east, a distance of
241.71 feet to a point; thence along a right-of-way offset south 76 degrees 13
minutes 43 seconds east, a distance of 8.00 feet to a point; thence continuing
along said right-of-way along a curve to the right having a radius of 437.46
feet, an arc length of 102.92 feet, a chord bearing of. north 20 degrees 30
minutes 39 seconds east, and a chord length of 102.68 feet to a point; thence
departing said right-of-way south 88 degrees 44 minutes 12 seconds east, a
distance of 196.44 feet to a point; thence north 47 degrees 23 minutes 29
seconds east, a distance of 59.12 feet to a point; thence south 88 degrees 44
minutes 12 seconds east, a distance of 126.98 feet to a point; thence south 02
degrees 20 minutes 21 seconds west, a distance of 164.54 feet to a point; thence
north 86 degrees 56 minutes 21 seconds east, a distance of 207.87 feet to a
point; thence south 02 degrees 02 minutes 21 seconds west, a distance of 259.80
feet to a point; thence south 88 degrees 28 minutes 19 seconds east, a distance
of 123.98 feet to a point; thence south 01 degree 15 minutes 48 seconds west, a
distance of 551.31 feet to a point on the northerly right-of-way of Georgia
Highway 92; thence along said right-of-way north 82 degrees 25 minutes 56
seconds west, a distance of 114.39 feet to a point; thence departing from said
right-of-way north 21 degrees 49 minutes 35 seconds east, a distance of 127.7
feet to a point; thence north 01 degree 15 minutes 48 seconds east, a distance
of 102.37 feet to a point; thence north 88 degrees 44 minutes 12 seconds west, a
distance of 321.95 feet to a point; thence south 01 degree 15 minutes 48 seconds
west, a distance of 186.89 feet to a point on the northerly right-of-way of
Georgia Highway 92; thence along said right-of-way: north 82 degrees 29
minutes 22 seconds west, a distance of 93.58 feet to a point; thence departing
said right-of-way north 01 degree 15 minutes 48 seconds east, a distance of
28.00 -feet to a point; thence south 82 degrees 29 minutes 22 seconds east, a
distance of 30.61 feet to a point; thence north 31 degrees 07 minutes 39 seconds
east, a distance of 45.39 feet to a point; thence north 01 degree 15 minutes 48
seconds east, a distance of 169.85 feet to a point; thence north 88 degrees 44
minutes 12 seconds west, a distance of 284.22 feet to the Point of Beginning.
Said tract containing 10.210 acres, more or 104s, as shown on that certain
"A.L.T.A. Survey & As-Built" Survey for ▇▇▇▇▇▇▇ Enterprises, Inc., Chicago Title
Insurance Company, and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC, dated March 30, 1998, prepared by
▇▇▇▇▇▇▇▇ Engineering, Inc., and certified by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, GRLS No. 1991.
Outparcel 1 Legal Description
All that tract or parcel of land lying and being in Land ▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ of Woodstock, Georgia, and being more
particularly described as follows;
Commencing at the intersection of the northerly right-of-way of Georgia Highway
92 (having a variable right-of-way) and the easterly right-of-way of Trickum
Road (having a variable right-of-way), said point being at Sta 207 + 58.33,
83.73' Lt. per Department of Transportation right-of-way documents for Project
#FR 165-1(49), dated 8/29/96; thence along the northerly right-of-way of Georgia
Highway 92 south 82 degrees 29 minutes 22 seconds east, a distance of 400.20
feet to the Point of Beginning.
Thence departing said right-of-way north 07 degrees 30 minutes 38 seconds east,
a distance of 203.58 feet to a point; thence south 88 degrees 44 minutes 12
seconds east, a distance of 158.37 feet to a point; thence south 01 degree 15
minutes 48 seconds west, a distance of 102.37 feet to a point; thence south 21
degrees 49 minutes 35 seconds west, a distance of 127.7 feet to a point on the
northerly right-of-way of Georgia Highway 92; thence continuing along said
right-of-way north 82 degrees 25 minutes 56 seconds west, a distance of 76.16
feet to a point; thence along a right-of-way offset north 07 degrees 25 minutes
52 seconds east, a distance of 4.19 feet to a point; thence continuing along
said right-of-way north 82 degrees 29 minutes 22 seconds west, a distance of
60.94 feet to the Point of Beginning.
Said tract containing 0.776 acre, more or less, and being designated Outparcel
#1 on that certain "A.L.T.A. Survey & As-Built" Survey for ▇▇▇▇▇▇▇ Enterprises,
Inc., Chicago Title Insurance Company, and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC, dated March
30, 1998, prepared by ▇▇▇▇▇▇▇▇ Engineering, Inc., and certified by ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, GRLS No. 1991.